The Driver's Guide To DUI - Licence Suspension Hearing

It has now generally been recognized that a driver's license in today's society is more than just a privilege; at least one federal court has referred to it as a "liberty interest" protected by the Fourteenth Amendment (see §3.0). Whether considered a "liberty interest," a "property right," or a "privilege," it is widely accepted that this valuable document cannot be suspended or revoked without affording due process.

In most jurisdictions, due process will consist of an administrative hearing, commonly conducted by the department of motor vehicles. Such hearings differ radically from court proceedings, of course, and it is important that counsel representing a client before such an agency familiarize himself with the rules and procedures.

The hearing officer, for example, may not have any legal background and may not be entirely familiar with even those evidentiary issues that apply to such hearings. He may also be wearing two hats, acting as the "prosecutor" in presenting the evidence, then switching to his role as administrative judge to rule on objections and decide the outcome. This obvious conflict of interests can be particularly frustrating. And, in fact, some of those jurisdictions employing this system are attempting to separate the two functions. Nevertheless, California DUI attorneys should be prepared for a simple fact of life in many jurisdictions: The hearing may be conducted by the very agency that has suspended, or is trying to suspend, the license. As a result, there is a strong inclination on the part of the agency and its hearing personnel to achieve this purpose - to confirm that grounds for the suspension exist.

A second major difference from court proceedings is that hearsay is admissible, though it may not be sufficient of itself to support a finding. This often means that the agency's entire case will consist of the arresting officer's report and, possibly, a record of the blood, breath, or urine test; the officer may never appear to give testimony.

Thus, for example, the Supreme Court of Wyoming has held that the officer's "implied consent form" constitutes an acceptable exception to the hearsay rule as a "public record." Department of Revenue and Taxation v. Hill, 751 P.2d 351 (Wyo. 1988). Furthermore, such a document was sufficient of itself to support a license suspension. The court concluded that "the right to confrontation and due process is protected and sustained provided that the accused driver is afforded an opportunity at his election and expense to subpoena the arresting officer for cross-examination." 751 P. 2d at 357 (emphasis added). See also Gray v. Adduci, 532 N.E.2d 1268 (N.Y. 1988), permitting hearsay evidence to be the basis of an administrative license revocation; People v. Johnson, 542 N.E.2d 1226 (Ill. App. 1989), holding that the officer need not appear at the suspension hearing unless subpoenaed by the driver. But see Nieman v. Department of Transportation, 452 N.W.2d 203 (Iowa App. 1989), holding that an officer's signed implied consent form was hearsay and constituted insufficient grounds for proving probable cause to arrest.

It should again be noted that in most administrative hearings, hearsay is admissible but cannot be the basis for any finding of fact on a central issue, unless the evidence would be admissible over objection in court. The motor vehicle department often circumvents this by relying upon the "official documents" exception to the hearsay rule, by adopting the police report as an official document of the agency. Further, the agency will use governmental presumptions of authenticity and accuracy. The end result is that defense counsel may be confronted with an agency case consisting entirely of paper — and nothing to cross-examine.

The Driver's Guide To DUI - Licence Suspension Hearing

Most jurisdictions, however, permit counsel to subpoena witnesses to the hearing; certainly, due process and the right of confrontation, if not simple fair play, would seem to demand this. In most cases, the agency will issue civil subpoenas which counsel must have served. And it is this power of subpoena that can prove invaluable in representing the client before both the agency and the courts. Of course, the officer's testimony provides the opportunity to contest the issues before the agency. But it also provides another critical — and commonly overlooked — benefit: an otherwise unobtainable deposition of the officer in advance of the criminal trial.

Since the issues before the agency usually involve factual determinations of blood-alcohol concentration, circumstances of refusal and/or probable cause to stop, detain, and arrest the client for driving while intoxicated, the entire spectrum of the officer's expected trial testimony can be examined. And, as with a deposition, the hearing provides the opportunity to commit the officer to testimony that can later be used to impeach him in trial. Note: If the testimony at the hearing is not being taken down by a shorthand reporter or tape recorded, counsel should consider bringing his own tape recorder and later having it transcribed.

This de facto discovery opportunity is not limited to the officer. Counsel may wish to consider serving civil subpoenas on the individual responsible for maintaining and calibrating the breath machine, or the technician who conducted the blood or urine analysis.

The more conventional method of discovery in suspension hearings is usually by means of a formal or informal request for discovery, or through the submission of interrogatories. For an example, see the Respondent's Interrogatories to Petitioner at the end of the section.

The issues at the administrative hearing will commonly include the following:

Did the officer have reasonable cause to believe the licensee had been driving under the influence?

Although such legal issues as probable cause are usually in issue, some jurisdictions take the position that the license suspension hearing is a civil proceeding and that the exclusionary rule simply does not apply. In James v. Director of Revenue, 767 S.W.2d 604 (Mo. App. 1989), for example, the court dealt with the issue of the admissibility of a breath test result where a denial of counsel by the officer was alleged. The court simply held that "the exclusionary rule did not apply to civil proceedings." See also Green v. Director of Revenue, 745 S.W.2d 818 (Mo. App. 1988); Westendorf v. Department of Transportation, 400 N.W.2d 553 (Iowa 1987). Yet it would appear that the United States Supreme Court has held to the contrary. See Welsh v. Wisconsin, 466 U.S. 740 (1984).

Finally, an adverse determination by the hearing officer is usually subject to judicial review, commonly by filing a writ (e.g., mandamus or prohibition) in the appropriate court. There may, however, be a requirement that administrative remedies first be exhausted before relief can be obtained from the courts. If the motor vehicle department has provision for an administrative review, this will probably have to be pursued before filing the writ.